Marshalling allows disappointed

beneficiary (whose intended

gift has been used to pay
creditor) to go after property
which ought to have been used
to pay the debts before resorting
to his property

Marshalling

Solvent Estate - where

assets exceed liabilities
and there is a surplus which can be
distributed among beneficiaries
There is an order
of priority in which assets
must be used to pay funeral and
testamentary expenses, and
administration expenses, debts
and liabilities

Introduction

Solvent Estate

In the absence of
contary intention
in the Will - there
is an order of
priority for payment of
debts and liabilities
[Contrary intention will
override the order]
Because there is no
statutory provision in
Jamaica - we use the
pre-1926 rules
Note General Legacies are
used to pay debts first
befor specific legacies
Note - personalty are
used first before realty
Unless realty is charged with
payment OR personalty is
exonerated from payment
by T
If surplus left from a fund
after paying creditors, it will
be deivised among
beneficiaries entitled
to that fund

Order of Priority

Specific and residuary

devises and specific
legacies pro rata
Real and personal property
which T had power to appoint
and which he had appointed by
will

Pecuniary Legacies are paid

out of residuary personalty
unless contrary intention
in the will
[e.g. gift to A for 50,000 will
be paid out of residuary
personalty ]

General pecuinary legacies

pro rata

Section 13
Intestate Estate and
Property Charges Act

When property is devised

with a mortgage charge or
balance on it, the beneficiary
or mortgagee is responsible
to realize the assets/security,
pay off the charge or
balance owing on the property
and the balance left is used
in appplying to pay off
debts and liabilities

General or Residuary
Personalty*** not specifically
beqeauthed or exonerated
or exempted
[any item not given
away or reserved specifically will
be used first, Not realty]
[General personalty -what left
after specific and general
pecuniary legacies have been
taken out - have to take out
money gifts first]
Real Estate Appropriated to
or devised in trust for payment
of debts
[any real estate which is
given to pay debts]
Real Estate descended
whether acquired before
or after the making of
the will
Real estates devised,
charged with the payment
of debts

Order